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Tuesday, June 26, 2012

As usual, Justice Antonin Scalia is exactly right about the Supreme Court muddled decision over Arizona’s power to police its own territory and enforce existing laws on immigration.

In his dissent on a ruling that strictly limits what states can to do protect their own citizens and enforce its own laws, Scalia wrote that the decision “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.”

It’s a stunning decision that once again illustrates how out of touch – and even contemptuous – the majority of the Supreme Court is with the Constitution, the rule of law, the will of the people and concepts such as state sovereignty.

Understand what this case was about: Arizona was enforcing existing federal law. It was challenged for doing so. Why? Because Barack Obama and his political followers don’t approve of existing federal law. Obama most recently announced his decision to revise federal law with the stroke of a pen – invoking a power he does not possess under the Constitution.

Yet, the Supreme Court, the body we count on as American citizens to be an ultimate arbiter of constitutional intent, ignores this contravention of the law and rules on behalf of the lawbreakers.

“We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants,” Scalia writes. “We are talking about a federal law going to the core of state sovereignty: the power to exclude.”

Citing case law, Scalia paints a coherent picture of a new power grab by the federal government – one unprecedented in U.S. history.

Rejecting the argument that the federal government has pre-emptive authority because immigration affects foreign relations, Scalia writes: “Though it may upset foreign powers – and even when the Federal Government desperately wants to avoid upsetting foreign powers – the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.”

Scalia makes a forceful case that Arizona has every right to do what its duly elected legislature and governor determined to do in the interest of the people of that state.

“The most important point is that … Arizona is entitled to have ‘its own immigration policy’ – including a more rigorous enforcement policy – so long as that does not conflict with federal law,” Scalia writes. “The Court says, as though the point is utterly dispositive, that ‘it is not a crime for a removable alien to remain present in the United States.’ It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.”

The point here is that Washington, through non-legislative channels – meaning the presidency and the court – is attacking the most essential benchmark of state sovereignty. The intent is clear: To render states subservient to the federal government – a notion that is anathema to the Constitution and the great tradition of America.

“The Government complains that state officials might not heed ‘federal priorities,’” Scalia continues. “Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona. The State’s whole complaint – the reason this law was passed and this case has arisen – is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.”

And here’s the conclusion that all Americans should ponder.

“So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” he asks. “A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test.”

Scalia says the decision means we need to cease referring to Arizona – and presumably the other 49 states – as sovereign.

This picture of the crowd that attended Saturday's "Restoring Honor" rally in Washington, D.C., is guaranteed to drive liber...

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